ACCESS DENIED: Fallout from the DeflateGate Appeal

Well, the decision to the appeal everyone was waiting for in the NFL has finally come down. But before we get to that, let’s take a quick look how we got here in the first place.

Back on Monday, May 12, 2015, based on the infamous Wells Report, the NFL announced that Tom Brady would be suspended without pay for four games for violating the NFL policy on ‘the integrity of the game.’ The New England Patriots were also fined $1 million and have to forfeit a 2016 first round pick and 2017 fourth round pick in the NFL draft.

And in turn the Patriots provided a lengthy rebuttal alleging, among other things, that Jim McNally, the part-time equipment manager, actually referred to himself as the “deflator” not because he was deflating footballs, but because he was looking at losing weight. Sounds reasonable. Who doesn’t want to go on a deflating diet?

Anyway, let’s not judge. There’s been too much of that already. And the so-called DeflateGate scandal, which grabbed way too many headlines and caused way too much debate, may finally be at an end.

You see, the NFL has released its decision on Tom Brady’s appeal regarding his four game suspension. And I say Tom Brady’s appeal because we’re all aware that Robert Kraft and the New England Patriots decided NOT to appeal the team portion of the penalty.

After a 10 hour full day appeal completed on June 23, according to ESPN.com’s Dan Graziano, Brady, via the NFL Players Association, extended a settlement offer to the NFL during the week of July 13. It was believed that Brady’s offer was to accept the fine if the NFL dropped the suspension. The offer, however, was apparently met with “silence” by the NFL.

And the big questions are, of course, was the result fair and what will happen next?

Well, it’s not clear whether this result is fair, particularly in light of what happened with Greg Hardy’s suspension. Everyone is aware that Greg Hardy’s suspension for domestic violence got reduced ultimately to four games. And although it doesn’t seem fair that Hardy gets a four game suspension for a morally reprehensible criminal act while Brady gets a four game suspension for underinflating footballs, the problem is that these two acts are like comparing apples to oranges. Although Hardy’s act is much more egregious from a social standpoint, Brady’s act is more egregious from the perspective of how it potentially impacts the game of football.

Of course, how much an underinflated ball will impact the game of football is up for debate. And the NFL has now instituted new procedures for insuring that footballs will never be underinflated again, so going forward, it’s a moot point.

With all this debate as to what is “fair” or “not fair”, I suppose the bottom line is that the inflation pressure of the football is an actual rule of the game, and it was broken. Some punishment seems appropriate, but whether four games is too much (or too little) is really for the NFL to decide, since they are the arbiter of the rules.

The popular sentiment is that if the NFL upheld any part of the suspension, Brady would go to federal court to fight the decision. Of course, which would allow him to play come day one of the 2015 season (assuming NFLPA and Brady’s lawyers convince the court to enter a preliminary injunction regarding the suspension), as it’s unlikely that this will be settled in court before September (trust me, I’m a lawyer, and courts don’t operate that fast, particularly when there are no criminal allegations at issue).

Turns out, the NFL has taken a preemptive strike and filed in Federal Court themselves, most likely to get a more favorable jurisdiction:

The down side of being in court for Brady is that he will certainly be called for a sworn deposition, something one of my foreign clients once called the “legal equivalent of a proctology exam”. In short, it’s not comfortable and a lot of bad stuff can come out at the end (puns and ridiculous analogies intended). And it won’t only be him, as the equipment manager and others in the Patriots organization are likely to be called as well. And with the fact being reported by ESPN’s Stephen A. Smith and NFL Network’s Ian Rapaport that Brady not only declined to turn over his phone but actually destroyed it, there’s issues of spoliation of evidence and possible legal consequences in court.

That, combined with the fact that if Brady loses in court, he will have to face his suspension perhaps at the end of the 2015 season or even during the playoffs (and yes, I do believe the Patriots will make the playoffs in 2015 with or without Brady for four games), it is almost better for Brady to sit out the first four games of the season and get it over with. But with the NFL’s actions (which in my opinion are a little shady — waiting this long to release the decision and then racing to court before the NFLPA could), it looks like at least some of this is no longer in his control.

Regardless, I doubt we’ve seen the end of this saga. All I can say, though, is that it’s sad that the most newsworthy event of the NFL off-season is whether Brady used too little air in his football. Come on everyone, I think it’s time to move on.

UPDATE – July 29, 2015

Well, I guess we’re NOT moving on, as both Tom Brady AND Robert Kraft have fired back. Tom Brady first made a lengthy post on his Facebook page indicating that there was no wrongdoing in replacing a phone that he made clear no one would ever have access to and that he would not let this “unfair” decision become “precedent” “without a fight”:

Also, I was asked for my legal opinion on the NFLPA and Brady going to court, and although I don’t have specific experience in this, I’d say the NFLPA and Brady have little choice but to counterclaim against the NFL since the NFL already brought suit in Manhattan in order to get a more favorable jurisdiction. Since an arbitrator already ruled on this, I think it’s pretty unlikely that a Federal Court will overrule it. But they’ve done it in the past, for Ray Rice and Adrian Peterson for instance. However, those decisions were based on criminal based allegations, whereas the Brady decision was based on NFL Rules. I’d be very surprised if the Federal Court intervenes regarding an NFL decision on NFL Rules, specifically based on the Collective Bargaining Agreement (“CBA”). The problem is that the NFLPA and Brady would have to prove that the process which the NFL took in determining the outcome of DeflateGate was “fundamentally unfair”, which is going to be a tough thing to prove if the NFL can demonstrate that it followed the rules agreed upon by the NFL, management and the players via the CBA.

And if all else fails, I think the NFL could pivot and allege that not turning over the cell phone and destroying it was impeding an investigation which broadly fits under “conduct detrimental” to the league. Let’s face it, the NFL wrote those rules, so they can basically interpret them anyway they want.

Clearly, we haven’t seen the last of this. Feels like a good made for HBO series, doesn’t it? Can’t wait until the next episode…